Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9900
SECOND DIVISION Docket No. 9989
2-SP-SMW-'84
The Second Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
( Sheet Metal Workers International Association
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
(1) That Carrier violated claimants contractual rights under Rule 25 of the
negotiated current Motive Power and Car Department Agreement.
(2) That 30 demerits assessed against claimant T. C. Sipes on October 23,
1981 by carrier be rescinded and his record be cleared of this incident.
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute
are respectively carrier and employes within the meaning of the Railway Labor Act
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was employed as a sheet metal worker at Carrier's Locomotive Service
Facility, Bakersfield, California. On the date involved herein he was assigned
to a relief position, with starting time of 11:00 P.M. On September 25, 1981,.
claimant was notified to report for formal hearing on October 19, 1981, on the charge:
"You are hereby notified to be present at the office of Trainmaster,,
Bakersfield, CA 9:00 AM, Monday, October 19, 1981 for formal hearing
being held to develop the facts and place responsibility, if any,
in connection with your alleged failure to protect your assignment
as Sheet Metal Worker, 11:00 PM to 7:00 AM, Wednesday, September
23, 1981, Bakersfield Roundhouse Facility, by not reporting for duty
at prescribed time and being absent without proper authority.
For this occurrence, you are hereby charged with responsibility which
may involve violation of portion of Rule 810, first paragraph, reading:
'Employes must report for duty at the prescribed time and
place,...They must not absent themselves from their
employment without proper authority.'
And Rule B, reading:
'Employes must be conversant with and obey the rules and
instructions. If in doubt as to their meaning, they must
apply to proper authority for an explanation.'
Form 1 Award No. 9900
Page 2 Docket No. 9989
2-SP-SMW-' 84
"of the General Rules and Regulations of the Southern Pacific
Transportation Company, as posted.
You are entitled to representation and witnesses in accordance with
your Agreement provisions. Any requests for postponement should be
directed to the undersigned, in writing, stating the reason therefore."
The investigation was conducted as scheduled. Claimant was not in attendance,
but the Local Chairman of the Organization was present. The record does not
show that any request for postponement of the hearing was made by claimant.
In the investigation, the Local Chairman stated:
"I talked to Mr. Sipes about it and I asked him if he wanted a
representative down here to represent him and he said he didn't think
he needed one. He also told me he might not be here today being
as it was his day off. "
The hearing was conducted in absentia, following which claimant was notified
on October 23, 1981, that his record was assessed thirty demerits.
In the investigation the Local Chairman objected (1) because of more than
one carrier official being present, and (2) because of the accused not being
present. We do not consider the first objection to be of sufficient significance
to invalidate the preceedings or of denying any substantive procedural rights
o f claimant. As to the second objection, this Board has issued numerous awards
upholding discipline where hearings were held in absentia. There was nothing
wrong in holding the hearing in absentia in the present case. If the claimant
considered it improper or an infringement upon his rights for the hearing to be
held on his rest day, he should have attended, as instructed, and then filed
a grievance under the applicable agreement.
In the investigation substantial evidence was adduced showing that claimant
did not report at his starting time of 11:00 P.M., three attempts were made to
telephone him at his regular calling place, one at 11:05 P. M., one at 11:20 P. M.,
and another at 11:50 P.M., all without success. Another sheet metal worker cues
then called for duty from the overtime board in place of claimant. The
Roundhouse Foreman testified that about 1:30 A.M. the claimant called him
(the Roundhouse Foreman) and stated that he had overslept; that he told claimant that
attempts had been made to contact him, and claimant stated that he was not at his
house, but at another person's house. ..
There is no dispute but that claimant's lateness in contacting the Roundhouse
Foreman (1:30 A. M.) was because of claimant oversleeping. The Organization
relies upon Rule 25 of the Agreement, which reads in part:
"(a) An employe detained from work account of sickness or for
other cause, shall notify his foreman as early as possible...
(b) If an employe is unavoidably kept from work, he will not be
unjustly discriminated against. "
Form 1 Award No. 9900
Page 3 Docket
No. 9989
2-SP -SMW-'84
The question to be decided is whether by oversleeping an employe is
"unavoidably kept from work". This question has been answered in the negative
by prior awards of this Board. In Award
No.
8411, involving the same Carrier,
and another craft the Board held:
"Sleeping too late does not constitute an unavoidable reason
for tardiness. Second Division Award
No.
7067. (Eischen)"
We agree with the
reasoning in
Awards 8411 and 7067. The discipline
imposed of thirty demerits was not arbitrary, capricious or in bad faith.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
/40
ATTEST:
"eez'~
Nancy J. ~er - Executive Secretary
Dated at Chicago, Illinois, this 9th day of May, 1984
v